IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WA NO. 1136 OF 2020
AGAINST THE JUDGMENT IN WP(C) 25012/2013 OF HIGH COURT OF KERALA
APPELLANT:
PLAKKATTU GRANITES (P) LTD.
PAYYANAMON P.O., KONNI,
REPRESENTED BY ITS MANAGING DIRECTOR, SRI.JACOB THOMAS
BY ADVS.
SRI.P.RAVINDRAN (SR.)
SRI.PAUL JACOB (P)
SRI.ENOCH DAVID SIMON JOEL
SRI.RONY JOSE
SRI.GEORGE A.CHERIAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF INDUSTRIES,
GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001
2 THE DIRECTOR,MINING AND GEOLOGY, DIRECTORATE OF MINING
AND GEOLOGY, PATTOM P.O., THIRUVANANTHAPURAM-695 004
3 GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, PATTOM P.O.,
THIRUVANANTHAPURAM-695 004
OTHER PRESENT:
SRI.M.H.HANILKUMAR, SPECIAL GP(REVENUE)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2021,
ALONG WITH WA.682/2021, THE COURT ON 12.10.2021 DELIVERED THE
FOLLOWING:
W.A Nos. 1136/2020 & 682/2021 - 2 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WA NO. 682 OF 2021
AGAINST THE JUDGMENT IN WP(C) 30510/2019 OF HIGH COURT OF KERALA
APPELLANT:
PLAKKATTU GRANITE INDUSTRIES (P) LTD
PAYYANAMON P.O. KONNI, REPRESENTED BY ITS MANAGING
DIRECTOR JACOB THOMAS.
BY ADVS.
SRI.P.RAVINDRAN (SR.)
SRI.ENOCH DAVID SIMON JOEL
SRI.S.SREEDEV
SRI.RONY JOSE
SHRI.CIMIL CHERIAN KOTTALIL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 THE DIRECTOR OF MINING AND GEOLOGY,
DIRECTORATE OF MINING AND GEOLOGY, PATTOM P.O.
THIRUVANANTHAPURAM 695 004.
3 GEOLOGIST,
MINING AND GEOLOGY DEPARTMENT, PATHANAMTHITTA 689 691.
4 TAHSILDHAR,
KONNI, PATHANAMTHITTA 689 691.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2021,
ALONG WITH WA.1136/2020, THE COURT ON 12.10.2021 DELIVERED THE
FOLLOWING:
W.A Nos. 1136/2020 & 682/2021 - 3 -
K.Vinod Chandran & Ziyad Rahman, JJ.
-------------------------------------------
Writ Appeal Nos.1136 of 2020 & 682 of 2021
-------------------------------------------
Dated, this the 12th October 2021
JUDGMENT
Vinod Chandran, J.
Official apathy is writ large in the above case which facilitated, wanton illegal quarrying being let off without any penalty; if the allegations are true. The appellant who obtained quarrying leases is alleged to have carried out illegal quarrying from an area in which there was no lease granted, against which proceedings were initiated and concluded. In appeal, the proceedings were set aside but denovo consideration was directed. The further proceedings carried out with inordinate delay and without complying with the appellate order as also the provisions in the Kerala Minor Mineral Concession Rules 1967 ('KMMC Rules' for brevity) was under challenge.
2. The learned Single Judge found that Ext.P9 is a notice and the petitioner had every opportunity to file objections, which opportunity they did not avail of. Instead, the petitioner preferred Ext.P10 review before the Government, which could only be treated as an appeal. Reading Ext.P11 W.A Nos. 1136/2020 & 682/2021 - 4 -
order it was found that the State Government had initiated the action after issuing notice to the petitioner and conducted site inspection. Exts.P10 and P11 were found to have been properly initiated and passed after assimilating the situation in detail. On these findings, the writ petition was dismissed. An order on consequential recovery action Ext.P9 was challenged in W.P(C) No.8872 of 2018 which also stood dismissed. Review petitions were filed against the common judgment. The review against the judgment in W.P(C)No.25012/2013 stood dismissed. The review from the judgment in W.P(C)No.8872/2018 stood disposed of by Ext.R8(a) order granting liberty to take all contentions against the RR notice before the Revenue Recovery Officer. The further proceedings pursuant to Ext.R8(a) order is challenged in the writ petition from which WA 682/2021 arises and the judgment in W.P(C)No.25012/2013 is challenged in W.A 1136/2020.
3. It is appropriate that we first consider the appeal filed first in point of time. We have heard learned Senior Counsel Sri.P.Raveendran instructed by Sri.Enoch David Simon Joel, for the appellant and Sri. Hanil Kumar M.H learned Special Government Pleader (Revenue) for the State.
4. Admittedly the appellant was granted a lease for W.A Nos. 1136/2020 & 682/2021 - 5 -
the purpose of extracting granite building stones over an area of 1.08 acres comprised in Sy.No.571/1A/34/4/1 and 571/1A/34/4/2 of Konnithazham village, Kozhencherry Taluk. The above lease was dated 08.05.1999 and was for a period of 5 years. Subsequently, a similar lease was granted for 0.534 hectors of land comprised in Survey Nos.571/1A.12 and 571/1A- 34-Konnithazham village from 08.09.1999. On 20.08.1999, purportedly, pursuant to an inspection carried out, the Geologist Pathanamthitta issued a communication alleging illicit quarrying of more than 748610 tonnes of granite building stones from an area between the area of the two leases granted to the appellant. Based on the measurement of area and the assessment of illicit extraction by the Taluk Surveyor, a demand notice dated 19.02.2000 was issued; which is Ext.P1, demanding a royalty of Rs.1,19,64,960/-, value of Rs.4,48,68,600/- and penalty of Rs.5000/-; totally Rs.5,68,38,560/-. The action was under Rule 58(2) of the KMMC Rules. An appeal was filed which ended in Ext.P2 order. The appeal was allowed and Ext.P1 order was set aside. However, the Director of Mining and Geology was directed to take action as per Rule 58(2) of the KMMC Rules.
5. Ext.P3 notice was issued by the Director of
W.A Nos. 1136/2020 & 682/2021 - 6 -
Mining and Geology to which Ext.P4 reply was filed. An order dated 04.01.2002 was issued, again imposing a penalty of Rs.5,68,38,560/-. The petitioner challenged the above order before this Court by O.P No.4734/2002. While the said original petition was pending, the Government issued Ext.P6 order. By Ext.P6 the last para of the appellate order was cancelled and modified to the following:
"In the circumstances stated above the order of the Geologist, Pathanamthitta (Order No.559/D.O.PTA/M/1999 dated 19.02.2000) is set aside."
When the Original Petition came up for hearing the Government produced Ext.P6 order which was marked therein as Ext.R3(6). Ext.P5 hence was found to be without jurisdiction and it was quashed. The learned Special Government Pleader sought permission to review Ext.R3(6) order and pass fresh orders in accordance with law. But the learned Single Judge refused to express any opinion on the same.
6. Later Ext.P6 order was cancelled and Ext.P8 order was passed again directing the Director of Mining and Geology to take further action. The Director by Ext.P9 reiterated the earlier order of the Geologist alleging illegal quarrying and quantifying the quarried material at W.A Nos. 1136/2020 & 682/2021 - 7 -
7,47,810 metric tonnes for which penalty of Rs.5,68,58,560/- was demanded. Obviously no fresh proceedings were carried out. The appellant filed Ext.P10 review petition before the Government. The Government treated the review as an appeal and rejected it by Ext.P11. Ext.P8, P9 and P11 are challenged before this Court. Learned Senior Counsel argued that the power of review cannot be time and again invoked and in any event, before a prejudicial order is passed there should be notice to the affected parties. It is also argued that the appellate order at Ext.P2, but for the last paragraph survives and in that context, a denovo consideration has to be made. It is also pointed out that penalties under Rule 58(2) can only be imposed by the State Government which powers can be delegated under Rule 62 by notification in the gazette. A notification authorizing the Director was issued only on 14.01.2003 (Annexure A1). Hence when the order was passed, the Director did not have any jurisdiction to proceed under Rule 58.
7. The learned Special Government Pleader would contend that Ext.P5 was a notice and as held by the learned Single Judge, without availing the opportunity to put forth their objections, the appellant chose to file a review before W.A Nos. 1136/2020 & 682/2021 - 8 -
the Government which was treated as an appeal and rejected. The learned Special Government Pleader would also point out that an inspection was conducted and a detailed report was filed based on which the quantification was assessed and penalty imposed. The learned Special Government Pleader points out Ext.R1(a) and R1(b) produced by the 1st respondent in the counter affidavit dated 28.05.2014 in support of his contention.
8. Ext.P2 is the order passed by the Government setting aside the order of the Geologist at Ext.P1. As has been argued by the appellant, on a reading of Rule 58(2) and 62 a proceeding for imposition of penalty can only be taken by the State Government or an officer duly authorised/delegated by the State Government. When Ext.P1 order was passed there was no delegation and clearly, the Geologist did not have authority to pass the order of penalty under Rule 58(2). Even when the Government authorized an officer, it was the Director of Mining and Geology who was empowered to exercise the powers of State Government under Rule 58. Hence Ext.P1 is one passed without any jurisdiction. The appellate order has set aside the order of the Geologist on merits and also on the question of jurisdiction and we W.A Nos. 1136/2020 & 682/2021 - 9 -
would for the moment consider Ext.P2 order independently.
9. Ext.P2, no doubt set aside the order of the Geologist. Ext.P2 detailed the main grounds of appeal and the findings on each of the grounds were immediately answered. The first ground was regarding lack of notice, absence of collection of evidence and hearing of the contentions of the appellant. The Department opposed the same asserting that a public hearing was conducted on 13.08.1999 and despite the presence of the representatives of the appellant, no defence was offered when the question of encroachment was raised. The appellate authority extracted Rule 58(2)and noticed Rule 62 and observed that there is no notification issued delegating the power under Rule 58. The operative portion of the notice issued by the Geologist dated 01.01.2000 was extracted and it was observed that in the said notice the site inspection is said to have been conducted on 19.08.1999. The appellant in their reply dated 10.01.2000 denied the inspection; upon which the Department contended that the inspection actually took place on 13.08.1999 and so did the public hearing. The appellate authority clearly found that no inspection took place on 19.08.1999, as stated in the notice and the inspection on 13.08.1999 was in a different context. It was W.A Nos. 1136/2020 & 682/2021 - 10 -
also found that if at all encroachment was found in the inspection, the Department ought to have issued notice to the appellant and considered their contentions in defence; which was not done. The Department having not taken any steps to issue notice or furnish the basis of the demand made it was found that the appellant should be given an opportunity to raise his objections. Then in paragraph 11 of the appellate order, the appellant's challenge to the assessment of the illegal quarrying and the argument that it was downright impossible to have carried out operations of that scale with the machinery and infrastructure available to the appellant was noticed. The appellate authority after consideration also found that before arriving at the correct quantity, the basis of assessment should be made available to the appellant and his contentions against that reckoned properly. It was also directed that the period of the alleged extraction and rate of levy of royalty also has to be specified in the notice. The last paragraph as it existed in Ext.P2 set aside the order of the Geologist and directed the Director of Mining and Geology to proceed under Rule 58(2).
10. Obviously, even when Ext.P2 order was passed the Director of Mining and Geology was not authorized to act as W.A Nos. 1136/2020 & 682/2021 - 11 -
the State Government under Rule 58(2), the notification having come only in 2003. Presumably realising the same Ext.P6 order was passed deleting the last para and confining it to mere setting aside of the order impugned in appeal; rightly so, since only the State Government could have proceeded under Rule 58(2) at that point. The further proceeding initiated after Ext.P2, based on the reservation made therein, definitely falls to the ground by virtue of Ext.P6 order. The challenge made to the further proceedings pursuant to Ext.P2 hence stood allowed by Ext.P7 judgment again based on Ext.R3(6) (Ext.P6-herein). The Government sought a further review of Ext.R3(6) which was not specifically permitted by the learned Single Judge. The further attempt of the Government in passing Ext.P8 order, cancelling Ext.P6 hence cannot be sustained. By mere issuance of Ext.P8 the proceedings pursuant to Ext.P2 ie, Ext.P5 cannot be revived since it has been specifically set at naught by the High Court in Ext.P7 judgment.
11. Now the further question is whether Ext.P8 can be sustained on the ground that it is in exercise of the powers of review conferred on the Government thus enabling fresh proceedings under Rule 58(2). Can this be said to be in W.A Nos. 1136/2020 & 682/2021 - 12 -
accordance with law would be an interesting question. As noticed by us the notification under Rule 62 delegating the power to be exercised under Rule 58(2) to the Director of Mining and Geology was issued by Annexure A1 dated 14.01.2003. The writ petition was disposed of in 2008. If the officers had acted with alacrity then Ext.P6 should have been cancelled and the High Court should have been apprised of the notification and the context in which Ext.P6 was issued. This was not done and the Government produced Ext.P6 order before the Court which resulted in the proceedings pursuant to Ext.P2 being found to be without jurisdiction. Ext.P8 order again is an order prejudicial to the appellant which should have been passed only with notice to them.
12. Yet again, even if Ext.P8 stands, the further proceedings cannot be sustained. Let us for a minute assume that even Ext.P6 has not been passed and Ext.P2 remains as it was originally; which was the object of Ext.P8 also. In 2012 when proceedings were taken by the Director of Mining And Geology under Rule 58(2) it was perfectly within jurisdiction, for the reason of delegation of powers made by the State Government under Rule 62. However, Ext.P2 order on merits cannot be wished away. In Ext.P2 it was found that no W.A Nos. 1136/2020 & 682/2021 - 13 -
inspection was conducted on the date shown in the notice as per the showing of the Department itself. The inspection conducted on 13.08.1999 was also in a different context. The appellant was not informed of the basis of the assessment, the period during which the allegation is levelled and the rates at which royalty was levied. Ext.P2 order set aside the order of the Geologist on jurisdiction and also on the factual findings. When the Director proceeds under Rule 58(2) as directed in Ext.P2 necessarily it has to be a denovo enquiry. An inspection has to be carried out with notice to the appellant and the allegations along with the measurements and assessment of illegal quarrying has to be communicated and objections called for from the appellant. The basis of the assessment of the illegally quarried material, the rates at which royalty is levied and the period in which such allegations are raised ought to be specified in the communication. The objections should be considered and order passed specifically refuting the grounds of objections and indicating the period, rates and basis of assessment.
13. Ext.P9 does not show any of these and it does not even speak of a prior notice having been issued. The learned Special Government Pleader points to the heading of W.A Nos. 1136/2020 & 682/2021 - 14 -
Ext.P9 which indicates it to be a 'notice' which opportunity he asserts was not availed of by the appellant. We cannot countenance the said argument for the simple reason that the recitals in Ext.P9 do not indicate it to be a notice. The operative portion, which is the last paragraph reiterate the quantity illegally quarried in metric tonnes and the penalty imposed under Rule 58(2). Ext.P9 does not even in form much less in content, comply with any of the directions in Ext.P2. The Special Government Pleader too relies on Ext.R1(a) and
(b) produced by the 1st respondent. That is an assessment made in 1999 based on which Ext.P1 was issued. The very inspection said to have been carried out for the purpose of the assessment resulting in Ext.P1 order has been found to be non-existent in Ext.P2. Further, if Ext.P9 was a mere notice, in considering the appeal the Government ought to have directed the appellant to put forth his contentions before the Director. However, Ext.P11 confirmed the demand and directed the Director of Mining and Geology to immediately take proceedings for recovery. We find no reason to sustain Exts.P9 and P11 orders also. We cannot approve of the decision of the learned Single Judge which too stands set aside. Exts.P8, P9 and P11 are set aside on the above W.A Nos. 1136/2020 & 682/2021 - 15 -
reasoning.
14. The other appeal challenges the recovery initiated pursuant to Ext.P9 order. The revenue recovery notice also computed the interest from the date of the alleged illegal quarrying, which alone was set aside. Since we have now in the first appeal set aside the penalty order, we do not think that the judgment impugned can be upheld. We hence set aside the judgment and also Exts P6 and P7 notices.
15. Before leaving the matter we cannot but observe that we fully agree with the observations made by the learned Single Judge in W.P © 30510 of 2019, regarding the laxity or abject indifference of the Officials of the Department of Mining and Geology, though in a different context. If the allegations are true, valuable natural resources have been plundered and pillaged and the perpetrators have gone scot- free, for reason of the apathy and indifference of the Officers motivated by rampant corruption or rank indifference. The Geologist passed an order without jurisdiction and the Government set aside the same on that ground and on the ground of violation of principles of natural justice. Despite the absence of a delegation under Rule 62 of the KMMC Rules, the Director was directed to W.A Nos. 1136/2020 & 682/2021 - 16 -
proceed afresh. No notification was brought out even after realising that the Director would be incompetent to proceed without a delegation. When a delegation was made in 2003 no steps were taken to initiate proceedings by the Director. The Government without any reason issued Ext.P6 and did not attempt to apprise the Court when the earlier writ petition was heard that there is a delegation by notification and that fresh proceedings be permitted. Even when fresh proceedings were taken no attempt was made to comply with the directions in the appellate order, Ext.P2. Incompetence of the highest order or an ingenious conspiracy to absolve the polluter from paying for his sins; the principle in Rule 58 of the KMMC Rules, is the undisputed conclusion.
15. The learned Special Government Pleader prayed for fresh initiation of proceedings, which request we decline since its more than two decades from the alleged extraction.
Ordered accordingly.
Sd/-
K. Vinod Chandran Judge Sd/-
Ziyad Rahman A.A.
Judge jma/-
W.A Nos. 1136/2020 & 682/2021 - 17 -
APPENDIX OF WA 682/2021 PETITIONER ANNEXURE ANNEXURE 1 TRUE COPY OF THE INTERIM ORDER DATED 23.10.2020 IN W.A. 1136/2020 ON THE FILES OF THIS HONBLE COURT.
ANNEXURE 2 TRUE COPY OF THE INTERIM ORDER DATED 13.11.2019 IN WPC 30510/2019 ON THE FILES OF THIS HONBLE COURT.